HKSAR v. Sham Pui Chak

DCCC 925/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 925 OF 2014

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REASONS FOR VERDICT
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1.The defendant appeared before me charged with five offences. They are respectively three charges of Dangerous Driving, one charge of driver failing to display standard registration mark, and one charge of using a defective vehicle.

2.The defendant pleaded guilty to the last two charges and agreed the facts in relation thereto but pleaded not guilty to the dangerous driving charges.  The sentencing aspect of the less serious charges was adjourned until the conclusion of trial in respect of the dangerous driving charges.  The particulars of the latter offences follow.  The prosecution alleged that the defendant, on 16 March 2014, drove a motor cycle bearing registration mark PE3892, on a road dangerously at three different places namely (1) Route Twist, (2) Kam Tin Road, and (3) Pok Oi Interchange respectively.

3.It ought to be mentioned that the defendant was willing to plead guilty to careless driving in respect of Charge 3 – the dangerous driving charge relating to Pok Oi Interchange; but this was not accepted by the prosecution.

Prosecution case in brief

Charge 1

4.On Sunday 16 March 2014, at about 9:45 am, a person later identified as the defendant was seen riding a motorcycle on Route Twist.  He crossed double white lines to overtake a bus at a speed of about twice the legal limit.  Sgt 47091 (PW2) who was on board a stationary police car saw what happened, turned on the siren and the flashing lights and gave chase.  PW2 followed the defendant along Route Twist towards Yuen Long and called for assistance through console.  The defendant reached speed of 100 km/h from time to time and overtook vehicles by crossing double white lines.  PW2 kept the defendant in sight but eventually lost him when the latter was entering Kam Tin Bypass.  PW2 informed the console about the loss.

Charge 2

5.Being alerted by console, PC 7652 (PW4) on police motorcycle was on the lookout for the defendant.  At about 9:54 am, PW4 found a motorcycle driven by a person whose outfits fit the description given by PW2 travelling on Kam Tin Road Yuen Long bound.  PW4 immediately U-turned to give chase with siren and flashing lights turned on.  The driver (later found to be the defendant) accelerated and reached a speed of 100 km/h and was travelling in between the first and second lanes of Kam Tin Road Yuen Long bound.  After going past Au Tau Roundabout, the defendant and PW4 entered Castle Peak Road Yuen Long which was a slip road towards Pok Oi Interchange.  PW4 never lost sight of the Defendant during the chase.

Charge 3

6.Again being alerted by console, Sgt 51071 (PW6) riding police motorcycle AM7191, Sgt 54022 (PW3) riding police motorcycle AM7340, and Ag Sgt 52118 (PW7) riding police motorcycle AM7131 were already waiting at Pok Oi Interchange at the junction with the slip road known as Castle Peak Road Yuen Long for the suspect motorcycle.  They positioned themselves in a line formation with PW6 at the lead and PW7 at the tail.  Originally they were at the junction on observation duty overlooking Castle Peak Road Yuen Long in the direction of Au Tau Roundabout.  When they saw the defendant’s motorcycle coming along the second lane of the slip road towards the Pok Oi Interchange, being followed by PW4, they switched on their sirens and flashing lights and moved into a new position (with the head of the lead police motorcycle pointing towards the first lane) effectively blocking the second lane access to the Interchange.  At that time there was slow or stationary traffic in the first lane.  When the defendant got closer and stopped, PW7 using loudhailer warned the defendant to switch off the engine.  However the defendant moved on and stopped only at a position very close to the blockade, with the pursuing PW4 on police motorcycle stopping closely behind to the right.  Sensing that the defendant wanted to move into the first lane through a small gap between the lead police motorcycle and a stationary taxi in the first lane, the three police motorcycle line formation moved forward to block off the first lane.  After they had done so, the Defendant nonetheless still proceeded into the first lane and in the process knocked on to the tail police motorcycle (PW7) which fell; and he also knocked on to the middle police motorcycle (PW3) causing both the defendant’s motorcycle and PW3’s police motorcycle to fall.

7.The collision caused injuries to both PW3 and PW7 and caused damage to their police motorcycles.

8.The defendant was arrested for furious driving and driving without 3^rd party insurance (with neither of which had he been charged) and cautioned.  Under caution, the defendant said (and this was challenged by way of an alternative procedure) that he fled at Tai Shan only because he did not want to be caught (and requested) by Sir for a vehicle examination; and he did not intend to hit the police vehicles.

9.Back at Yuen Long Police Station, a record of interview (the subject of another challenge by way of alternative procedure) was taken from the defendant.

Preliminaries

10.To prove their case, the Prosecution relied on two sets of admitted facts and called 7 prosecution witnesses.  The Prosecution also very fairly agreed one other set of admitted facts (called the “3^rd admitted facts”) at the request of the Defence in the middle of the prosecution case for the general issue.

11.The Defence challenged the admissibility of the verbal admission and the record of interview.  This was resolved by way of the alternative procedure.

12.The admitted facts would be reproduced in full below, followed by a summary of the evidence of each of the prosecution witnesses.  The order of witnesses had been rearranged so as to give as far a chronological picture as possible.

Admitted facts

13.At 1032 hours on 16 March 2014 Sgt 54022 and Ag Sgt 52118 were treated in Pok Oi Hospital and discharged on the same day.  Sgt 54022 was examined by Dr Lau Chu Leung who found swelling and tenderness on his left knee.  Ag Sgt 52118 was examined by Dr Poon Kin Ming who found tenderness on his left knee. They were each granted sick leave, for Sgt 54022 from 16-19 March, for Ag Sgt 52118 from 16-20 March 2014.

14.On 17 March 2014 at the Vehicle Examination Centre AM7340 driven by Sgt 54022 was examined by Mechanical Inspector Chung Ho Ming.  He found it to have cracks and scratches on nearside front turn signal lamp upper garnish cover, dents and scratches on the nearside front and rear crash bar, renewal on signal lamp upper garnish cover reflective tape and cracks on nearside front turn signal lamp as a result of the incident.  The repair cost was HK$8,862.

15.On the same day at the same location also by Mechanical Inspector Chung Ho Ming, AM7131 driven by Ag Sgt 52118 was also examined.  It was found to have dents and scratches on crash bars of both side and engine cylinder cover, scratches on foot rest bar and deformation of crash bar support as a result of the incident.  There was no other observable damage.  The repair cost was HK$9,928.

16.On the 17 March 2014 at the same location motorcycle PE3892 was examined by Vehicle Examiner Yeung Wai Ching.  He found the vehicle in respect of tyres, steering, service brake, lights and horn to be in a satisfactory working order and not in apparently damaged condition save for damage shown in photo 22 of P1.

17.A bundle of 37 photographs are produced as P1.  These were taken by SPC49353 on the 16 March 2014.  Photos 1 to26 inclusive were taken between 10:15 and 10:50 am, whilst photos 27 to 37 were taken between 11:45 am and 12:10 pm.  Neither party places reliance on the footnote caption of the photographs.

18.It is further admitted that from the morning of the 16 March 2014 when the three motorcycles police motorcycles AM7340 and AM7131 and private motorcycle PE3892 were involved in an accident at the Pok Oi Interchange Yuen Long they were conveyed by Police Transport to the Vehicle Examination Centre. They were not in any way used or altered from the time of the accident until the examinations conducted on the 17 March as set out in paragraphs 2 to 4 of the Admitted Facts dated 23 February 2015.

19.Exhibits D1(1), (2) and (3) are respective photographs showing the relevant section of Kam Tin Road section near Ko Po Tsuen Yuen Long bound.

20.Exhibits D1(1), (2) and (3) reasonably reflect what the aforesaid section of Kam Tin Road looked loke as on 16 March 2014.

21.Exhibit D1(4) is a map showing part of Kam Tin Bypass to Kam Tin Road near Ko Po Tsuen.

PW2 Sgt 47091 Wong Kwok Yuen

22.On 16 March 2014, at 9:45 am PW2 was driving a police car AM 8940 on Route Twist NT.

23.PW2 produced a sketch he had previously drawn as P3.  At location 1 on the sketch ie part of Route Twist, PW2 saw a motorcycle (“mc1”) cross double white lines to overtake a KMB No 51 bus stopping there.  Route Twist was a dual lane highway with double white lines separating the two lanes.  The bus was travelling north.  After seeing the overtaking action, PW2 gave chase on his police car.  Before the police car moved, the motorcyclist travelling on the opposite lane turned his head sideways (RHS) to look at PW2; at that time, PW2 had already switched on the blue and red flashing lights on top and in front of police car and turned on siren.  Before movement, the police car was parked in an open space off the opposite lane to which the bus was travelling.  Mc1 was going downhill.

24.When mc1 first cut out from the tail of the bus, it was 10 odd meters away.

25.The police car was originally parked in a position perpendicular to the road.  After mc1 went past the front of the police car and cut back into its original lane, PW2 turned right to give pursuit.  PW2 was not able to see the registration mark on mc1 even when he was close enough.

26.PW2 estimated mc1 was travelling at an average speed of about 100 km/h; sometimes it was faster, other times slower.  The police car itself was travelling at nearly 100 km/h when it was following mc1.

27.At the first stage of the chase, the speed limit was 50 km/h.

28.PW2 reported to console that it was chasing a dark coloured almost black with multi-coloured full fairing motorcycle.  The motorcyclist was wearing race suit with protective clothing on his/her sleeves and he/she was also wearing a full-face helmet.

29.Later, as a result of receiving information from console, he went to Pok Oi Interchange and there recognized the private motorcycle he had earlier been chasing.  When pursing mc1 at the earlier time, PW2 was looking at the rear of it but could not see the registration mark.

30.At Pok Oi, he noticed that the rear number plate (of the motorcycle) was movable and it was placed facing upwards; and that explained why he was not able to see it earlier.

31.In respect of the other features of the motorcycle he saw at Pok Oi Interchange, they matched those on mc1 he saw at Route Twist.

32.The (male) civilian rider of the motorcycle at Pok Oi Interchange was a fat bodied person and PW2 recognized him as the motorcyclist on Route Twist by his clothing and full-face helmet.

33.Mc1 at Route Twist also overtook other vehicles by cutting double white lines at locations 2 to 8.  Along the route, the speed limit was 50 km/h, with two lanes one direction for each.

34.PW2 lost sight of mc1 at 0953 hours when he was at location 8 whilst the motorcycle was at Kam Tin Bypass.  Upon receiving information on console, at 0958 hours PW2 arrived at Pok Oi Interchange to recognize the motorcycle.

35.P1(29)-(30) related to Location 2; P1(31) related to Location 3; P1(32) related to Location 4; P1(33) related to Location 5, mc1 travelling away from photographer; P1(34)-(35) related to Location 6, mc1 travelling away from photographer in (34), but towards photographer in (35).

36.P1(36) related to Location 7, mc1 travelling away from photographer; the motorcyclist crossed the double white lines at a point very close to the intersection and bend.

37.P1(37) related to Location 8, mc1 travelling towards photographer.

38.PW2 identified the blue motorcycle lying on the ground with its rear registration plate flipped up in P1(6)-(7) as being that one he had been chasing ie mc1.

39.Under cross-examination, PW2 said that Kam Tin Bypass was behind the photographer in P1(37).

40.On 16 March 2014, the weather was perfect for driving – light, dry and with clear view.

41.PW2 disagreed to the suggestion that there were groups of cyclists and motorcyclists down Route Twist on that day while PW2 was on duty between 6:45 am and 3:30 pm.

42.PW2 said that the traffic volume on Route Twist at the time of incident was even lighter than that shown in P1(27)-(37) which were taken at about noon.

43.P1(1) showed PW2’s patrol car AM8940.  It was a Toyota hybrid.

44.In the oval shape figure on the sketch P3, the top half was the Kam Tin Bypass, the bottom half was the continuation of Kam Tin Road.

45.In the roundabout leading to Kam Tin Bypass, there was also an exit to Tung Wui Road.

46.In the second roundabout, there were several exits too.  There was one to Kam Ho Road.  Having passed that roundabout a motorist could within 100 metres turn left into Tsing Lung Highway.

47.There was a distance of about 300 meters between Location 8 and the first roundabout.

48.PW2 could remember there was traffic on the road coming in either direction when he last saw mc1 travelling in Kam Tin Bypass.

49.The corner in P1(27) was a long sweeping corner.

50.PW2 could keep up with mc1 to witness all the locations along the route from Locations 2 to 8.

51.PW2 disagreed that he was travelling at the same speed as mc1 because the distance between mc1 and PW2 was sometimes longer and sometimes shorter. When there were vehicles ahead of mc1, the motorcyclist would slow down, and the distance between them will be shorter.  When mc1 had overtaken the vehicles ahead, and there were fewer vehicles ahead, the distance between them will be longer.  However, PW2 emphasized, during the whole process, PW2 never lost sight of mc1.

52.During the first stage, when mc1 overtook the bus, it was travelling at approximately 90 km/h.

53.When mc1 appeared in front of the stationary PW2, it had already slowed down; it was maneuvering the bend at about 30-40 km/h.

54.Whenever there was a bend, mc1 would slow down to 30-40 km/h, shortening the distance between the two vehicles.  The same was true whenever there were vehicles along the road ahead of mc1.

55.Mc1 would not be able to overtake at a bend.

56.The police car was an ordinary Toyota with no special adaptation.

57.From Locations 1 to 8 on the sketch P3, it was about 5 km.

58.It was shortly after PW2 went past Location 8 that he last saw mc1.

59.On being questioned as to when he looked at his watch again, PW2 said that after he passed Location 8, he entered Kam Tin Bypass and searched for mc1 but in vain; he then reported to console and looked at his watch.  The time at which he looked at his watch was about 2 to 3 minutes after he passed Location 8.

60.PW2 was not sure if he had taken 6 minutes to travel between Locations 1 and 8.

61.PW2 disagreed that he had been completely mistaken about his average speed of 100 km/h.  PW2 described his speed in the following manner: actually from Locations 1 to 8, often there were vehicles blocking mc1, hence the lowest speed for mc1 and PW2 was 30 km/h; the highest speed of mc1 at some sections of the road was over 100 km/h, and the speed of PW2’s vehicle was sometimes over 100 km/h.

62.PW2 disagreed to the suggestion that he was mistaken as to the identity of the motorcycle and its driver.

PW4 PC 7652 Chan Ho Yin

63.On 16 March 2014, at about 9:45 am, when PW4 was driving police motorcycle AM6179, he received certain information over the radio.  As a result, he was looking out for a motorcycle last seen going over Kam Tin Bypass.  About 10 minutes after receiving the information, PW4 saw what he thought was the same motorcycle (“mc2”) on Kam Tin Road outside Ko Po Tsuen, which was a position the sought-after motorcycle (mc1) could have arrived at from driving along Kam Tin Bypass.

64.From the beginning of Kam Tin Bypass to where PW4 saw mc2, the distance was more than 2 km.

65.When PW4 first saw mc2, he noticed it was a dark coloured motorcycle, with the driver wearing black jacket, black trousers, and a dark helmet, driving towards PW4 (on the opposite side).

66.It was driving at 40 to 50 km/h along Kam Tin Road towards Yuen Long; PW4 was travelling in the opposite direction.

67.At that time, PW4 was paying attention to mc2.  When it passed PW4 on his right hand side, PW4 saw that the number plate at its rear was pointing upwards.  PW4 immediately made a U-turn intending to catch up with mc2 and stop it for investigation.  As soon as PW4 U-turned, mc2 sped off.  PW4 then immediately switched on the red and blue beacon lights and the siren on its motorcycle.  At that time there were two lanes (in the same direction) with vehicles travelling on both lanes.  Mc2 was speeding in the gap between the first and second lanes.  PW4 speeded up to give chase also travelling in the same gap.

68.The vehicles in the two lanes were travelling at about 40-50 km/h.  Mc2 speeded up in the gap to overtake these vehicles.  Mc2 was travelling at about 100 km/h.  There were times when mc2 was in the middle of two vehicles (each on one lane).  The gap it got through was enough for a motorcycle, but not enough for a small car, to go through.  Mc2 was travelling along Kam Tin Road towards Yuen Long.  When it reached Au Tau Roundabout, it took the left side exit (first exit) and went on to Castle Peak Road Yuen Long section.

69.Speed limit of Kam Tin Road was 50 km/h.  There were broken lines dividing the two lanes of Kam Tin Road along which the chase took place.

70.At the Au Tau Roundabout, the traffic in Kam Tin Road had to give way to vehicles in the Interchange.  Mc2 went into the Roundabout at about 80 km/h. Then it travelled along Castle Peak Road Yuen Long bound at about 100 km/h towards Pok Oi Interchange.  In the first lane, there were vehicles queuing up for entering the Interchange.  Mc2 chose to drive into the Interchange along the second lane.

71.Once PW4 had got up to the speed of mc2, until and including the time at Au Tau Roundabout and also including the time at Castle Peak Road leading to Pok Oi Interchange, he kept a constant distance of 30 metres between the two vehicles.

72.When mc2 was driving up the road leading to Pok Oi Interchange, there were already three police motorcycles at the Interchange with red and blue lights on; they were in a row at the junction of the road into the Interchange.

73.There were two lanes to the Interchange: the first lane had slow traffic constricted by the presence of police control (three police motorcycles); the second lane was clear of traffic.

74.Mc2 drove along the second lane fast to a point 10 meters away from the Interchange and stopped.  The officer on the rightmost police motorcycle raised his right arm and gave a stop hand signal.

75.Mc2 stopped and PW4 also switched off his siren.  Then PW4 switched on his loudspeaker and stopped about 1 metre behind mc2.  Then he heard the same (rightmost) officer speak on the loudhailer “Motorcyclist stop the vehicle, motorcyclist stop the engine.”  PW4 noticed that the motorcyclist showed no sign of stopping (the engine) or getting off the motorcycle; on the contrary, mc2 started off again.

76.When mc2 drove forward again, the three police motorcycles parked across the road drove forward 1 metre and stopped again; and the way they lined with each other was they were closer to each other.

77.Mc2 also stopped after the motorcyclist on it had driven to the location where the three police motorcycles had stopped.  When mc2 stopped, PW4 was behind it to its right.  PW4 spoke on the loudhailer, “Motorcyclist, you are suspected of dangerous driving, stop the vehicle and kill the engine.”  After PW4 had spoken, mc2 started off again, intending to go through the space between a taxi on the left lane and the three police motorcycles.  The right front of mc2 then collided with the left front of the police motorcycle to the right of PW4 (seemed to be the tail of the three police motorcycles).

78.Mc2 did not stop after the collision.  It continued moving forward and hit another police motorcycle which was directly in front of PW4 (middle of the three police motorcycles).  After the second collision, all three involved motorcycles fell on their left sides.

79.PW4 then got off his police motorcycle to give assistance.

80.From the moment PW4 first caught sight of mc2 to the time when the three motorcycles fell, the time elapsed was about 1 minute.

81.After the suspect motorcyclist had fallen on the ground, he was struggling with his arms and legs waving and kicking.  PW4 went over and tried to control him.  PW4 had his hands pressed on the suspect’s forearms and also told the latter not to move.  The suspect still in his helmet did not stop struggling.  PW4 managed to put handcuffs on the suspect’s hands behind his back.  Then the suspect became calmer.  PW4 then took off the suspect’s helmet, helped him up and took him to side of the road to sit down.

82.Then PW4 asked him if he had suffered any injuries and continued to make investigation into the case.  The suspect replied that he had not suffered injuries.

83.PW4 then asked the suspect for identity documents and driving licence. The suspect replied that his identity documents and driving licence were in his trousers pocket; so PW4 took them out for him.  PW4 found that the suspect’s name was Sham Pui Chak and identified him in court as the defendant.

84.PW4 asked him where he was driving to.  The defendant replied that he was driving home.  At this stage Sgt 47091 (PW2) arrived at the scene.  PW2 told PW4 in the presence of the defendant that earlier that day at 0945 hours, he saw the defendant driving a motorcycle on Route Twist near Lamp Post FB 3950 and started going in the direction of Kam Tin; in the meantime, the motorcycle crossed double white lines for several times and also committed speeding.

85.PW4 recorded all this information down on his notebook and checked the damage on all the fallen motorcycles.

86.At 1014 hours the same day, by this time the defendant was completely calm, PW4 arrested the defendant for furious driving and another offence and administered caution to him.

87.Under caution, the defendant said (Defence objected to this being admitted into evidence) “I was leaving in the area of Tai Shan because I was afraid the officer might have to check my vehicle and I did not intend to hit the police motorcycles.”  PW4 later recorded that reply.

88.PW4 then took the defendant to a police vehicle and there removed his handcuffs.

89.At 1040 hours, PW4 escorted the defendant away to another police vehicle for a journey to Yuen Long Police Station.  At 1045 hours, PW4 arrived with the defendant at the police station.

90.At 1046 hours, PW4 escorted the defendant to be taken to Duty Officer S Sgt Wong Kwok Wah (PW5) to whom PW4 reported in the presence of the defendant the events earlier that day ie that the defendant was driving a motorcycle with number plate PE3892 from Route Twist near L/P FB3950 and he was driving along Route Twist, Kam Tin Road, Kam Tin Bypass, back to Kam Tin Road, Castle Peak Road and Pok Oi Interchange; during the meantime, defendant was crossing the double white lines several times and was speeding; the defendant also hit police motorcycles AM7340 and AM7131, causing abrasion on left knees of Sgt 54022 (PW3) and Ag Sgt 52118 (PW7); so PW4 arrested the defendant for furious driving and another offence.

91.SSgt (PW5) asked defendant whether he understood why he was arrested.  Defendant indicated he understood.  SSgt (PW5) asked him whether he had any complaints or if he had suffered any injuries.  Defendant replied that he had no complaints nor injuries.

92.Then SSgt (PW5) served a notice to the defendant for a body search.  PW4 took defendant into a room in the report room for search.  There was nothing suspicious on him.

93.Then PW4 served a notice to persons in custody Pol 153 (PP6) on the defendant.  PW4 handed it over to the defendant to read and also read it to him.  PW4 read only the 1 to 9 captions (bold texts) to the defendant.

94.After the above procedure, the defendant did not make any request.

95.Then PW4 took a record of interview from the defendant in the same room, with just the two of them inside.  PW4 was seated opposite to the defendant at a table.

96.The record of interview was produced as PP5.

97.The interview began at 1100 hours on 16 March and ended at 1300 hours.

98.Although the defendant said “Tai Shan” at the scene which was post-recorded in the record of interview, PW4 understood it to mean Tai Mo Shan.  According to PW4’s knowledge, someone riding in Tai Mo Shan could come down and end up in Route Twist.

99.The signatures at the end of the answers in the Record of Interview, they came to be signed in one go in the end.

100.At 1245 hours when PW4 gave the record of interview to the defendant to read, it was then that the defendant signed at various places.

101.Finally, he served copies of the Record of Interview (6 pages), notice to person in custody (1 page), breath test form (2 pages), and notice to search (2 pages) on the defendant; the acknowledgement of receipt of copies was produced as PP7.

102.PW4 identified the blue and white motorcycle in photo album P1 as mc2 that he had been pursuing that day.

103.The speed limit on the slip road leading to Pok Oi Interchange was 50 km/h.

104.PW4 had not assaulted, threatened the defendant in any way.  Other than promising to take off the cuffs when he became calm, PW4 had not offered the defendant any promise or inducement.

105.When the cuffs were taken off the defendant after he had calmed down as promised, he was uncuffed thereafter.

106.No other police officers assaulted, threatened or offered promises to the defendant in PW4’s presence.

107.Under cross-examination, PW4 agreed that before he met up with mc2, he had gone past Au Tau Roundabout.  PW4 agreed that during this journey (before he met up with mc2), he would have gone past Au Tau Roundabout and entered Kam Tin Road.

108.PW4 agreed that Au Tau Roundabout was quite a big roundabout and that there were a lot of vegetation trees and bushes outside the roundabout.  In the centre of the roundabout there was a little bit of vegetation of grass.

109.PW4 agreed that Au Tau Roundabout was a busy intersection.

110.PW4 agreed that the stone pillar was in fact a foot/base support of an overhead bridge going towards Yuen Long.

111.Sketch (subsequently produced as D1(4)) being placed before PW4 as a reference, PW4 agreed that he was travelling from the top left corner along Kam Tin Road heading towards Ko Po Playground along the black line.  At 50 Kam Tin Road was the road to Ko Po Tsuen.

112.The position where PW4 first spotted mc2 was near the zebra crossing in photo D1(2).  It was at the zebra crossing at photo D1(2) that PW4 did the U-turn.

113.By the time PW4 did the U-turn, Kam Tin Road was a busy road with vehicles on both lanes towards Au Tau Roundabout.

114.PW4 said that there were some tall trees similar to those on photo D1(3) on the outside of Au Tau Roundabout.

115.PW4 agreed that there was some vegetation on the inside of the roundabout some of it would be tall in height.

116.To the suggestion that one cannot see through the vegetation on the inside of the roundabout, PW4 disagreed saying this was because the road in the roundabout was pretty wide.

117.When it was suggested that one was not talking about the width of the roundabout but the density of the vegetation of the roundabout, PW4 said that the vegetation inside the roundabout would not affect his observation on the condition of the traffic in the roundabout.

118.PW4 agreed that if one was travelling on Kam Tin Road towards Au Tau Roundabout, one would turn left at the roundabout to travel towards Yuen Long.

119.When PW4 was (initially) travelling on Kam Tin Road heading in the direction of Kam Tin Bypass, he was already in heavy traffic.  He was on the right (2^nd) lane.  He was on the lookout for a dark-coloured motorcycle travelling in either direction.

120.PW4 agreed there were many vehicles including motorcycles on the road at the time.

121.PW4 confirmed that the place where he first spotted mc2 was near the zebra crossing in photo D1(2).

122.PW4 was not sure whether mc2 was on the first or second lane of Kam Tin Road Au Tau bound when first sighted.  There were other vehicles near it but there were no other motorcycles at that time.

123.PW4 could not remember how many motorcycles had passed him during his journey from Au Tau Roundabout to the zebra-crossing.

124.The suspect motorcycle during the chase on Kam Tin Road got up to 100 km/h but slowed down to 80 km/h when it reached Au Tau Roundabout.

125.PW4 agreed that the suspect motorcycle weaved in and out of heavy traffic close to the centre of the road (between first and second lanes running in the same direction).

126.PW4 disagreed to the suggestion that PW4 must have lost sight of the dark motorcycle as he approached the Au Tau Roundabout while on Kam Tin Road.

127.Between Au Tau Roundabout and Pok Oi Interchange, there was a gas station on the left hand side about 300-400 metres from Pok Oi Interchange. PW4 disagreed to the suggestion that he first saw or picked up the defendant’s motorcycle close to the gas station.

128.PW4 disagreed to the suggestion that the defendant’s motorcycle originally followed the line of traffic on first lane of slip road but later changed to second lane.

129.PW4 disagreed it was the two police motorcycles that collided and rammed the defendant on his Yamaha motorcycle.

130.PW4 disagreed that the black mark on the fairing of the defendant’s motorcycle (as shown in P1(22)) was left there by one of the police motorcycles.

131.PW4 agreed that he asked the defendant a number of questions at the roadside before he formally arrested and cautioned the defendant later; the reason was that he did not think that what he asked him then had anything to do with the case or with any offences that he might be prosecuted with.  Besides, the questions merely related to whether he had suffered any injuries or whether he was under any emergency.

132.PW4 denied that he had taken the defendant’s mobile phone, nor did he see any officer take away that phone at the side of the road.  PW4 squarely denied that he had taken that phone and also denied that the defendant had requested to use the phone to contact his employer after that.  PW4 also disagreed to the suggestion that the defendant had asked to call his parents to get a lawyer.

133.PW4 made a contemporaneous note of the defendant’s reply under caution in his notebook because he had been trained to do so.

134.The reason why PW4 had not read back or shown the defendant what was recorded and asked him to acknowledge the accuracy thereof was that the scene was not a suitable place to do so.

135.It was suggested but denied that the words attributed to the defendant were not said by him.

136.PW4 disagreed to the suggestion that having arrived at Yuen Long police station, the defendant repeated his request that he be allowed to phone his boss and his family member to get a lawyer.

137.It was suggested and denied that PW4 impressed upon the defendant that this was a criminal matter and therefore the defendant had to wait for the CID officer’s decision on the issue of using a phone.

138.It was suggested and denied that by the time of the commencement of the record of interview, PW4 was made aware of the defendant’s mother’s arrival at Yuen Long Police Station.

139.It was suggested and denied that PW4 had not served PP6 Notice to persons in custody on defendant at 1057 hours.  It was suggested and denied that having completed PP5 the record of interview, PW4 asked the defendant to sign all the documents ie PP6 and PP7 in one go.

140.In gist, it was suggested but denied that PW4 authored all the information attributed to the defendant in the record of interview and induced the defendant to sign and write up the declarations in return for allowing him to phone home and his boss at work and for allowing bail the same day ie 16 March.

141.PW4 agreed that shortly after completion of the record of interview, he left for Tai Hing Operation Base; that he started to record his witness statement there at 1545 hours in Room 217.  PW4 said that in Room 217, he was only recording his own statement without regard to who was or were there at the same time.

142.PW4 was never aware the defendant’s mother had been to Yuen Long Police Station.

143.PW4 said that there was a poster size Pol 153 inside the Report Room of Yuen Long Police Station.

PW1 Wong Wai Wah

144.PW1 was a taxi driver and was on duty on 16 March 2014.  He was rather familiar with the approach to Pok Oi Interchange. 

145.In the morning, he was on the said approach.  There were only a few other cars.  Traffic was smooth.  As he drove towards the approach, he could see uniformed officers on three police motorcycles.  One sergeant instructed him by hand signal to pull over and stop on the first lane of the approach quite near the junction.  The 3 motorcycles were stationary at the Interchange.

146.About 10 seconds after the Sgt stopped PW1’s taxi, a motorcycle came up in the second lane.  The same Sgt asked the motorcyclist with the loudspeaker to stop the motorcycle “Stop and kill the engine”.  The motorcyclist stopped at a position in the middle of the right lane a little beyond the front of the taxi (diagonally in front of taxi by about 10 ft) for about 1 or 2 seconds.  It could not proceed forward because the right lane was totally blocked by the three police motorcycles, leaving a little space in front of the taxi (in the left lane).  The motorcyclist started driving again trying to get through to the Interchange through the space in front of the taxi.  The two frontmost police motorcycles moved forward trying to stop him by closing the space/gap.  An impact occurred among the three motorcycles (two police and one private).  Three motorcycles lied on their sides.  The officer from the unfallen police motorcycle came up to help subdue the motorcyclist.

147.The cyclist was wearing black motorcycle jacket and a pair of shoes that fitted driving motorcycle.

148.Under cross-examination, PW1 said that the front of the taxi was less than 1 foot from the closest (fallen) police motorcycle ie AM 7131.

149.Initially, PW1 agreed with the suggestion that as that defendant’s motorcycle diagonally crossed the front of his taxi, the police motorcycles collided with the right side of the defendant’s motorcycle.

150.Later, PW1 corrected himself by saying that it was the first police motorcycle (AM 7340) that collided with the defendant’s motorcycle; it was a case of the two motorcycles hitting head-on meaning front wheel hitting front wheel.  As a result the two motorcyclists fell.  There was no collision between AM7131 and the defendant’s motorcycle; but as AM 7340 fell, the motorcyclist of AM 7131 also fell as he was being affected by being too close.

151.The defendant was then taken to sit on the side of the road.  A number of officers were guarding him there.

152.PW1 confirmed that before the collision, the three police motorcycles were lining up head to tail close to but within the broken white lines (on side of the lane), blocking the right lane; the three police motorcycles were parked at a slight angle to the double white broken lines with the tails close to the lines.

153.PW1 drew a sketch P2 to show the space/gap in left lane in front of his taxi.  On the sketch, the three motorcycles were wholly within the right lane at the time when the defendant’s motorcycle was in the right lane.

154.On re-examination, PW1 said that his sketch was a little different from the real situation; in reality the space in front of his taxi was not wide enough for a car to drive through.

PW3 Sgt 54022 Chiang Lap Pong

155.On 16 March 2014, as a result of receiving information over the police radio, PW3 drove his police motorcycle AM7340 to Pok Oi Interchange and arrived there at 0954 hours.

156.Sgt 51071 and Ag Sgt 52118 were there on their respective motorcycles.

157.As a result of information received over the radio, the police paid special attention to vehicles going up towards Pok Oi Interchange; the police would under safety circumstances instruct that vehicle to stop.

158.PW3 and colleagues saw a motorcycle coming from Kam Tin at high speed of the colour and shape and a driver whose helmet and clothing and jacket resemble the features of those that their colleague had been chasing in Kam Tin.

159.The speed of the motorcycle was over 50 km/h the legal limit.

160.About 30 metres behind it was a police motorcycle with blue flashing light and siren on.

161.Then PW3 and his two colleagues at Pok Oi Interchange switched on the siren and the blue lights and drove their respective motorcycles (from the observation position) to the right lane of the slip road (Position 1).  That motorcycle also drove from Castle Peak Road to the slip road of the Pok Oi Interchange.

162.That time the motorcycle was in right lane and there was no other vehicle in front of it; in the left lane there were other vehicles including an NT taxi.

163.PW3 said that they the officers did not give any instruction to the taxi driver.

164.When the motorcycle was still some distance away, Ag Sgt 52118 on the police motorcycle behind PW3 used loudhailer to shout “Motorcycle driver, stop the motorcycle.”  Then the motorcycle stopped at about 10 metres away from the three police motorcycles.

165.The taxi in the left lane was stationary about 2 metres from the police motorcycles.

166.Suddenly the motorcycle started off and drove up and stopped in the right lane about 1 metre away from the police motorcycles.  The pursuing police motorcyclist spoke with loudhailer “motorcyclist, stop the motorcycle, kill the engine, you are suspected of dangerous driving.”  After hearing that, the motorcyclist suddenly started off in the direction of the gap between the police motorcycles and the taxi.  Once he started off, his motorcycle collided with Ag Sgt 52118’s motorcycle behind PW3 and also collided with PW3’s motorcycle.  PW3 lost balance and fell to the left and hit the suspect motorcycle and made it fall down.  PW3 suffered left knee injury.

167.Among the three police motorcycles, Sgt 51071’s motorcycle was closest to the NT taxi.  The width of the gap was about 2 metres or half of a private car’s length.

168.There were three motorcycles all in line, the first was Sgt 51071’s, then behind it to the left was PW3’s.

169.The three police motorcycles were not parallel but at an angle to the give way lines.

170.The distance between PW3’s front wheel and Sgt 51071’s rear wheel was about 1 metre.

171.PW3 explained the sketch P4 which he drew in court.  After the three officers had seen the suspect motorcycle, they moved their motorcycles from the observation position to Position 1.  After the suspect motorcycle had stopped about 10 metres from them, and started off again, and stopped at 1 metre away from the three police motorcycles.  As the front of the suspect motorcycle was pointing at the direction of the left lane, the three police motorcycles moved a little forward to stop at Position 2.

172.At that time, the suspect motorcycle was stationary at 1 metre away from the three police motorcycles.  It was in the right lane very close to the middle dividing line.  Behind him was the police motorcycle with the loudhailer saying “motorcyclist, stop your motorcycle and kill the engine, you are suspected of dangerous driving.”  The suspect motorcycle suddenly started off again.  Once it started, it collided with Ag Sgt 52118’s motorcycle; the suspect motorcyclist carried on driving and hit PW3’s motorcycle.  As a result, PW3 lost his balance, and his motorcycle fell on the ground.  Suspect motorcyclist also fell over and was struck by his own motorcycle.  PW3 and his colleagues then got the suspect motorcyclist up and subdued him.

173.After suspect in his helmet was controlled, PW3 went to see a doctor.

174.Under cross-examination, PW3 agreed that his original observation position was on a hill and he was able to look down the slip road stretching over 200 metres leading from Castle Peak Road.

175.PW3 disagreed that the suspect motorcycle was travelling on the first lane of the slip road about 200 meters away.  PW3 disagreed that the speed of the suspect was slower than 50 km/h as the latter travelled up the slip road.

176.PW3 disagreed it was his intention to, and which was in fact what he did, ram into the suspect’s motorcycle in order to stop him.

177.It was suggested that the suspect was travelling at a slow speed of below 5 km/h to which PW3 disagreed.  PW3 said that he could not estimate the suspect motorcycle’s speed however he thought it would be over 10 km/h because according to his experience, if a motorcycle just started off, it would be impossible for it to balance under 10 km/h; in which event, one foot would have to be used to touch the ground in order to balance it.

178.PW3 however agreed that from his angle, he would not have been able to see if the suspect had one foot on or off the footrest.

179.PW3 disagreed that the suspect was taking off and picking up speed at the time of the collision.

180.At the court’s invitation, PW3 recapped the sequence of events leading to the accident as follows.  At 0954 hours, PW3 riding AM7340 police motorcycle arrived at observation position.  PW3 saw Sgt 51071 and Ag Sgt 52118 there. During that time, from radio and from sight, PW3 knew that a suspect motorcycle was travelling from Au Tau Roundabout towards him at high speed, and 30 metres behind was a police motorcycle tailing him with blue lights on.  That police motorcycle followed the suspect motorcycle to enter the slip road leading to Pok Oi Interchange.  They were over 100 metres from PW3.  The three police motorcycles left the observation post and moved to Position 1 on the sketch P4.  As the suspect motorcycle was all along travelling in right lane of the slip road, PW3 and his two colleagues stopped in the right lane hoping to stop it.  PW3 believed that when the three police motorcycles had stopped in Position 1, the suspect motorcycle was 50 to 60 metres away from them.

181.When the suspect motorcyclist saw the police motorcycles had stopped at Position 1, still he drove forward at high speed until it was 10 metres away from the 3 police motorcycles.  Then he stopped abruptly.  There was police warning given over the loudhailer.  There was somebody instructing the motorcyclist to kill the engine.  But the motorcyclist ignored that; instead he drove the motorcycle up to about 1 metre away from PW3 and stopped.  That time the three police motorcycles were still in Position 1.  The position in which it stopped was still in right lane of slip road close to the mid-dividing line.  PW3 and colleagues believed that the motorcyclist would slip through within the gap between the right front of taxi and the front wheel of the lead police motorcycle (about 2 metres wide).  So they moved from Position 1 to Position 2.  The suspect motorcycle was still stationary.  When another warning came from the pursuing police motorcyclist, “Motorcyclist, stop the motorcycle, kill the engine; you are suspected of dangerous driving”, the suspect motorcyclist suddenly started off; and as soon as it did so, it collided with the Ag Sgt 52118’s motorcycle, and PW3’s motorcycle.  All three lost balance and fell down.

182.Under further cross-examination, PW3 agreed that the police movement from Position 1 to Position 2 happened fast.

PW7 SPC 52118 Ho Chi Ho

183.On 16 March 2014, Sunday, PW7 was on duty as Ag Sgt.  He was riding police motorcycle AM7131.  There came a time when he and other officers on police motorcycles were at the Pok Oi Interchange.

184.Sometime later, a dark blue motorcycle with a police motorcycle behind it was rising up the approach road towards the Interchange.

185.At the time when the private motorcycle was coming up, PW7 instructed the motorcyclist to stop with the loudhailer on his police motorcycle and also with hand signal: “Motorcyclist, stop the vehicle.”  The motorcycle then stopped in the second lane on slip road 10 metres in front of PW7.

186.PW7 demonstrated the hand signal in court.  First, he pointed 2 fingers towards the motorcycle.  Then he raised his hand with palm outwards.

187.After the motorcycle had stopped 10 metres in front of PW7, he with the use of the loudhailer said, “Motorcyclist, stop the engine.”  At that time, there was a stationary taxi in the first lane.

188.The motorcyclist did not listen to PW7’s instructions and he started off again and continued moving forward.  Then PW7 drove his motorcycle about 1 metre forward.  The other police motorcycles on the right hand side and in front of PW7 were also driven forward.  This motorcycle then came to the place 1 metre in front of PW7 on the left hand side and stopped.  The police motorcycle driven by PC 7652 (PW4) which was following this motorcycle drove up to the right hand side behind this motorcycle.

189.Then PW4 said through the loudhailer, “Motorcyclist, you are suspected of dangerous driving; stop the vehicle and kill the engine.”

190.But the dark blue and white motorcycle continued to move forward and its head collided with the left hand side head of PW7’s motorcycle.  This caused PW7’s motorcycle to fall to the left.

191.PW7 was injured in the collision and was taken to the Pok Oi Hospital for treatment.

192.Under cross-examination, PW7 said he went to Room 217 of Tai Hing Operational Base with Sgt 54022 (PW3) after receiving hospital treatment.  There he wrote a witness statement at 1530 hours for about an hour.  He was sure that he had not received any assistance from any of PC 7652 (PW4), Sgt 54022 (PW3) or Sgt 51071 (PW6).

193.PW7 said that from his riding position, he could not see the part of his motorcycle that was hit, but he could feel it was the left side of the front part of the front wheel; and he marked it in photo P1(18).

194.The head of the private motorcycle meant the front wheel of the defendant’s motorcycle.

195.PW7 estimated the defendant’s motorcycle to be travelling at 5-10 km/h because the defendant just started off.  PW7 fell because he lost his balance. Prior to falling, PW7’s motorcycle was stationary with his left foot on the ground.

196.After hitting PW7’s motorcycle, the defendant’s motorcycle carried on moving forward.

197.When shown photo P1(22) and asked if the smear mark was caused by his front tyre, PW7 said no and that he was sure of it.

PW6 Sgt 51071 Tsui Yick Fook

198.On 16 March 2014, PW6 was on duty with his police motorcycle AM7191.

199.As a result of receiving information over police radio at around 9:45 am, PW6 and other officers took up position at Pok Oi Interchange.

200.After the incident, PW5 went to Room 217 of the Tai Hing Operational Base to record a witness statement.  The writing took about an hour and started at 3:30 pm.  Sgt 54022 (PW3) and Ag Sgt 52118 (PW7) were also there.  They discussed only the times at which they received the information and they made observation(s) at Pok Oi Interchange.  They had not discussed what happened because it was not necessary to do so.

201.In photo P1(16), the half motorcycle shown at the right was his motorcycle.  He parked the vehicle there after the collision incident had happened in the first lane of the slip road behind him.

202.PW6 denied that he did not have a good impression of the incident which happened behind him.

PW5 Wong Kwok Wah

203.PW5 has retired from the police force.

204.On 16 March 2014, he was on duty as SSgt in Yuen Long Police Station. Duty hours were from 0700 to 1545 hours.  He was the duty officer.

205.Having had the benefit of a memory refreshing document being shown to him without objection from Defence, PW5 was able to pinpoint that it was the defendant (by name and ID card no) who was brought before him that day at about 1046 hours.  PW5 asked him if he had any complaint or any request.  The defendant did not say anything.

206.PW5 was able to recall that there was/were poster(s) (larger than A3 size) on the wall of the report room/search room 2 on which the rights of arrested persons would be stated.

207.Apart from the usual detained person movement record, the police would also keep an activity record on the computer for a detained person if there was any special event regarding that person.  In general terms, those special events would include approval given by the OC Case for the suspect to be visited by his mother; and would also include approval by the OC Case for a solicitor to meet and confer with the arrested person at the police station; and would also include the situation when an arrested person having been allowed to phone his mother/father to raise money for bail.

208.Although the OC Case was stated on the detained person movement record to be WIP YIP, OSSU YLDiv, the actual OC case should have been OC Team 8 CID YL whose office was in Tin Shui Wai.

209.Under normal circumstances, PW5 would have notified the OC Case in Tin Shui Wai as early as possible of the presence of this arrested person in Yuen Long Police Station awaiting his/her investigation; it would then be up to his/her decision as to who should come over to Yuen Long.

210.Usually the OC Case would be notified within 15 minutes unless he/she was not in office.

211.The record of interview to be taken by the arresting officer did not require instructions from the OC Case; after the arresting officer had finished his work of obtaining the basic details of the suspect, the record of interview would be conducted.

212.PW5 agreed that it would normally be the case that the OC Case would have to give approval before an arrested person could contact a third party from outside of the police station, including a family member and a solicitor; the duty officer also had such a power when the OC Case was out of reach.  The decision would depend on the case, say for example, whether other persons were at large.  The decision either way would be recorded in the activity record.

213.In this particular case, PW5 did make contact with the OC Case of Team 8.

214.According to the activity record for this defendant, within the duty shift of PW5, the defendant had not made any request to contact a family member.

215.At the sole request of the Defence, the detained person movement record of the defendant was produced and marked as P8; again at the sole request of the Defence, the activity record of the defendant was produced and marked as P9.

216.PW5 disagreed that the defendant made a request to the arresting officer in PW5’s presence.  PW5 denied that defendant’s parents presented themselves in front of him at 1050 hours on 16 March.

217.PW5’s subordinates would notify him if the defendant’s mother had arrived at the police station asking to see her son; but there was no such incident.

218.It was suggested and denied that PW5 or his subordinate had on the day before 11 am knocked on the door of the search room (where the defendant and the arresting officer were) and notified the arresting officer of the arrival of the defendant’s mother at the police station.

219.According to the record, the defendant was transferred to Pat Heung Police Station at 1:55 pm.  The reason was that the location where the case occurred was within the Pat Heung Police Station jurisdiction.

220.On re-examination, PW5 confirmed that the first entry on P9 the activity record was at 2047 hours on 16 March when a parent wanted access to the defendant.

Summary of the record of interview

221.Apart from a post record of the alleged verbal at the scene, the record of interview contained the following information attributed to the defendant:-

(a) Defendant got the motorcycle PE3892 at Tin Fu Court Car Park around 8:30 am that day for a lone ride;

(b) He went to Route Twist at Tai Mo Shan; later, he ran into some motorcyclist-friends there on Route Twist; they went for breakfast at (corrected to) Yan Kee Restaurant on the foot of Tai Mo Shan; after that, he went to Tai Mo Shan alone. Later, it was about time for work, hence he intended to return home;

(c) As he was in a rush to return home, he overtook vehicles by cutting lanes with double white lines; he thought he had been speeding but he was not aware of the speed;

(d) He did not know he was being chased by police motorcycle with red and blue signal flashing and siren wailing at the time; he found some police vehicles travelling around but he thought the police were working on something else;

(e) He travelled in between the first and second lanes and passed by other vehicles at high speed while off Ko Po Tsuen on Yuen Long bound of Kam Tin Road because he was in a rush to return home and for work;

(f) At Pok Oi Interchange, he found so many police motorcycles around; he was afraid of being caught for a vehicle examination, so he intended to drive away slowly by the side but somehow he unintentionally crashed into the police motorcycles;

(g) His motorcycle had been modified – he had changed the exhaust pipe and set a licence plate support; he knew that the licence plate support was substandard and the numerals were facing upwards and thus were not visible; and

(h) He was the motorcycle’s registered owner and he was responsible for the maintenance.

Procedural steps relating to the special issue

222.The Prosecution closed its case on the special issue.  There was no half-time submission on the special issue.  I ruled that there was a prima-facie case on the special issue.

223.Defendant elected to give evidence and call one other witness on the special issue.

DW1 (S) defendant Sham Pui Chak

224.Defendant was aged 22 on 16 March 2014 and he was living with his parents at the time in Tin Shui Wai.  He was employed as an airport ground crew member.

225.Defendant remembered having sat on the side of the road that day for about 15-20 minutes after the accident.

226.At that time, deft was handcuffed by police.  A policeman took away his mobile phone from his trouser pocket and also took away his ID card and driving licence.  That policeman was the same policeman who took a statement from him later (the arresting officer PC7652 (PW4)).

227.On that day, the defendant had to go to work; therefore he requested to call his boss and also call his family member to get a lawyer for him.  The two policemen who had earlier collided with him (PW3 Sgt 54022 & PW7 SPC 52118) on their motorcycles also heard it.  But PW4 ignored him.

228.The reason why he wanted a lawyer was that he had never been arrested before and he wanted a lawyer to protect him.

229.After a while, defendant was taken to a police vehicle where PW4 cautioned and arrested him for furious driving.  He made no reply under caution.

230.At one time before moving to Yuen Long Police Station, he was asked by PW4 if he had suffered any injuries while he was in the state of being handcuffed (with no reason having ever been given to him for the handcuffing). He replied he had not suffered injuries.

231.After arrival at Yuen Long police station, he was taken by PW4 to the duty officer (PW5).  PW5 asked him if he had any request.  He said he needed to call his boss and his family members to get a lawyer for him.  PW4 said to him that he had to wait for the arrival of CID officers because it was for them to decide whether he could make the call.

232.Then he was taken to the search room 2 at the back of the report room.

233.It was only after the record of interview (PP5) had been taken from him that PP6 the notice to persons in custody was filled in by PW4.  That was also when he signed on this notice.  He signed on the notice without knowing the contents; no one let him read it or explained the contents to him before he signed.

234.About the record of interview PP5, this is how it came into being.  PW4 came into the interview room and asked for his address and some other basic information.  Then he (PW4) wrote on his own until p. 2 to the bottom.  He then gave the defendant a card with which to copy out a declaration.  After that, he carried on writing; when he reached p. 3, he gave the defendant another card with which to copy out another declaration.

235.When the defendant was copying out the declaration, PW4 asked him to be cooperative and to sign quickly after writing in return for PW4 letting him make a phone call to his family members and his boss so that his family members could bail him out later.

236.At that time, the defendant just wanted to leave the police station as soon as possible; so he did as told.  After he had copied out the declaration on p. 3, and while PW4 was writing, one officer came in.  PW4 and this officer had a discussion contents of which the defendant could hear but did not understand.

237.The defendant could not see what PW4 was writing on PP5 as the papers were towards PW5 and against him.

238.The defendant had not provided any of the answers attributed to him on the record of interview.

239.After he had copied out the declaration on p 6, PW4 asked him to sign at the appropriate places on each of the 6 pages of the record of interview in one go; and he did without knowing what he was signing to.  Before he signed on p 6, no one let him read the document nor was it read to him.

240.After he finished signing PP5, he was presented with PP6 Notice for signature.  Thereafter he was presented with PP7 the acknowledgement of receipt (blank at that time) for signature without any explanation.

241.The 11 pages of document subject of the completed acknowledgement of receipt were only given to the defendant on the next day ie 17 March, together with his personal belongings.

242.After having signed all those documents on 16 March, the defendant was taken from the search room to a cell in the report room.

243.The defendant was taken to Pat Heung Police Station at about 2 pm for reasons unknown to him.  Before departure, he still had not been able to contact his parent or boss.

244.Defendant could not remember if he had seen his parents at any time on 16 March.

245.At Pat Heung, he was taken to an interview room.  He just waited there.

246.The defendant spent approximately 2 hours in Pat Heung; however, he agreed that shortly after 7 o’clock (presumably pm) he was transferred back to Yuen Long.

247.The defendant could not remember if he had an opportunity of contacting his parent after returning to Yuen Long sometime after 7 o’clock.

248.Having been told that according to the activity record (P9) approval had been given by the OC case at 8 o’clock for a solicitor Cham Yiu Keung to see him, the defendant agreed to the fact of having seen Cham at 8:30 pm on 16 March.

249.Having been told that according to the activity record approval had been given by the OC case at 8:47 pm for his mother Wong Sau Chun to visit him, the defendant said that they had a brief meeting.

250.Under cross-examination, Deft said that he received Higher Diploma education at 20 and he had been working as airport ground crew member since December 2013.  It was no part of his duty at the airport to fill in forms.  He disagreed that his work at the airport gave him the idea of importance of filling in forms.

251.The defendant disagreed to the suggestion that after the accident he had struggled and that was the reason why he was handcuffed.

252.The defendant agreed that he was arrested for furious driving and no insurance and was cautioned but the defendant said that took place at a police vehicle and not on the roadside.  In this respect, the defendant disagreed that he got the location wrong.

253.The defendant denied that before he was taken from Pok Oi Interchange to Yuen Long Police Station, another officer came to say he (the officer) had been chasing the defendant at Route Twist.

254.The defendant said that it was to the SSgt that he made the request that he be allowed to call his employer and his family in order to get a lawyer; and the SSgt completely ignored the request.  In essence, the defendant said that PW4 already gave an answer before the S Sgt could make any reply.

255.Defendant did not say directly he wanted a lawyer because he had no means of contact of any lawyer.  All he did was he said he wanted his family members to get a lawyer for him.

256.The defendant was not aware of the presence of any posters in the duty office displaying rights of a person in custody including the right to find a lawyer.  He had never been caught like this to a police station and he was quite nervous at that time and did not look around to see if there was such poster.

257.Defendant denied that he knew full well that if he needed a lawyer, the police would not interview him until he had one.  Defendant disagreed to the suggestion that he was willing to be interviewed in the absence of a lawyer.

258.The defendant had told PW4 he was to go to work later that day but that was at the scene at the side of the road.

259.The defendant wrote those false declarations only because PW4 told him to do so; in fact he would do anything PW4 was to ask him to do because all he wanted was to get bail and go home as soon as possible.

DW2 (S) Wong Sau Chun Jenny

260.DW2(S) was the mother of the defendant.  She was a person of good character and clear record.

261.About 1020-1025 hours on 16 March, she received a phone call from a boy who was a friend of both the defendant and herself.  He told DW2(S) that her son had a traffic accident in Yuen Long (this did not go to prove a traffic accident took place, it merely shed light on DW2(S)’s state of mind).

262.She immediately got changed and left home for Yuen Long Police Station. Her husband drove her in a goods vehicle.  It took less than 15 minutes.  They arrived before 11 am.

263.There were two policemen on duty at the station.  DW2(S) asked one of the policemen if there was a traffic accident in Yuen Long involving a Sham Pui Chak after approaching the front desk in the Report Room with her husband.  She was not asked to produce any ID card.  The two policemen went back into the room(s) and then a traffic policeman (in traffic uniform) came out.  He was standing between the two policemen on duty and spoke to DW2(S) across the main (front) desk.  He asked DW2(S) who she was in relation to Sham Pui Chak. DW2(S) replied that she was his mother and wanted to see her son and she also wanted to ascertain if he (son) wanted a lawyer.

264.Then the traffic policeman said that Sham was already 18 and could handle it himself; that the police were taking information from him and there was no need to get a lawyer for the time being.  DW2(S) said that she really wanted to see her son and wanted a lawyer for him.  He then told DW2(S) to sit down and wait.  So she did.

265.The officers then sat down.  DW2(S) and her husband sat down (on a bench or chairs in a row of chairs) adjacent to the front desk.

266.DW2(S) thought that she had waited 3-4 hours.  She understood her son was inside Yuen Long Police Station.  After this long wait, a different police officer came out and said Sham had to go to Pat Heung Police Station as he had to be handled by the CID.  So DW2(S) and her husband left for Pat Heung.  It took them about half-an-hour.

267.DW2(S) could not remember the time of arrival as she was crying and worried about her son on that day.  She spoke to the Duty Officer in Pat Heung and made some enquiries about her son.  After she said she wanted to see her son and that she wanted to get a lawyer, she was told that she had to wait for the CID to decide whether to allow her to see her son or not.  So she again waited.

268.She could not remember if she was asked for her ID card, because she had been crying for a long time then.

269.After about an hour, a policeman told DW2(S) that on orders of the CID, Sham would be brought back to Yuen Long Police Station and that Sham would be brought before court the next morning (again, this did not go to proof of truth of contents, just shedding light on DW2(S)’s state of mind).

270.Because DW2(S) had been crying so hard in Pat Heung, a policeman brought SHAM out for a glance before bringing him back inside.

271.That evening, DW2(S) and husband returned to Yuen Long Police Station.

272.About the solicitor Cham Yiu Keung, DW2(S) said that she told her boss her need and it was her boss who made a call to get Cham; then it was she (when she was at Pat Heung) who arranged Cham to go to Yuen Long Police Station.

273.She and her husband arrived first at Yuen Long Police Station and they waited in the Report Room for the solicitor to arrive.  Before the solicitor arrived, she did not approach the front desk or make any request.

274.When the solicitor arrived, DW2(S) said to him that she wanted to see her son; he said he would make arrangement.

275.Later she saw her son for 5-6 minutes after she identified herself to the Duty Officer; however she had no recollection as to whether she did that by producing her ID card.

276.One unidentified policeman said to her that he son could not leave that night.

277.The next day 17 March, she returned to Yuen Long Police Station to obtain bail for her son.  She saw her son again shortly after noon on 17 March.

278.DW2(S) said that when defendant left the police station, he was not carrying anything; but then she added that she did not pay attention to whether he was carrying any documents.

279.Talking again about the time prior to going to Yuen Long Police Station in the morning, after the boy who called her in the morning of 16 March had hung up, she immediately tried to phone her son but the line was not getting through.  She repeated but the same thing happened.

280.Under cross-examination, DW2(S) said that the boy was called (Ah) Yung Tsai.

281.In fact, Yung Tsai phoned not her but her husband in the first instance.  Her husband passed the phone to her after telling her what Yung Tsai had said.

282.Yung Tsai said (again not to prove the truth) there was a traffic accident in Yuen Long; that it looked like DW2(S)’s son was involved.

283.Yung Tsai even sent DW2(S) a video clip in the morning of 16 March. Yung Tsai said that the vehicle looked like DW2(S)’s son’s vehicle.  He asked DW2(S) to identify it from the video clip.  DW2(S) said she no longer had that video clip and had no idea how Yung Tsai got it so soon after the accident.

284.Yung Tsai continued to say over the phone (again not for proof of truth) that there was someone in the video clip who looked like DW2(S)’s son and he asked DW2(S) to identify him.

285.During the morning when DW2(S) went to Yuen Long police Station, police officers did not ask her for ID card.

286.DW2(S) said that she could not remember if she gave her ID number to the police between 8:00 pm and 8:47 pm on 16 March; the reason being it was a long time ago and she was very sad.

287.DW2(S) had no recollection of her husband’s full name and ID number and her phone number being given over to the police during the same time.

288.DW2(S)’s boss was called Wong Chi Wing, a dentist.  DW2(S) first contacted him on 16 March at about 11:30 when she was in Yuen Long Police Station. The boss gave her a number to call for the solicitor.  She didn’t call that number; her husband did when she was not around.

289.It was suggested but denied that DW2(S)’s first contact with the Yuen Long Police Station did not commence until the evening of 16 March.

290.When asked to explain why no solicitor turned up until the evening, DW2(S) said that the policeman asked her to wait and that they would go to Pat Heung soon for CID to handle (the case); DW2(S) said that she did not know it was a statement that the police were taking from the defendant (at Yuen Long) because the policeman told her that they were merely taking information from him.

291.When cross-examined about the video clip, DW2(S) said she did not see it and that she herself did not receive it.  Yung Tsai initially sent it to her husband’s phone; and it was a few days after that the video clip was forwarded to her own mobile phone.

292.While her husband was driving, DW2(S) played this video clip; and it appeared to show an accident at a big roundabout.  She could not recognize her son’s motorcycle.

293.Nonetheless, DW2(S) was afraid that her son had been involved in an accident.

294.DW2(S) agreed that the defendant did usually drive the motorcycle but at the same time she said that he did not frequently drive it.

295.To the suggestion that it rather worried her that the defendant rode on a motorcycle because she was worried that he might get hurt, DW2(S) retorted that the defendant drove quite safely so that she was not quite worried about that.

296.DW2(S) disagreed to the suggestion that if she heard her son might have been involved in a motor accident, she might think he was riding on a motorcycle.

297.But then she agreed to the suggestion that from what had happened to her on 16 March, she was fearful that her son might have been injured.

298.However, she disagreed that what she should have been looking for were hospitals and not police stations.

299.It was suggested that if what she told the court was the truth, she would have gone with her husband to the Pok Oi Hospital, a hospital right adjacent to the Pok Oi Interchange.  DW2(S) simply replied that she and her husband went to the police station and not hospital.

Further procedural steps relating to the special issue

300.The Defence closed their case on the special issue.

301.Having regard to the Defence document entitled “Objections to the admissibility of the alleged “verbals” and the post-record, namely Exhibit PP-5”, and after having considered the evidence relevant to the special issue and the credibility of the relevant witnesses, I made a ruling on the special issue.  The ruling was such that I was satisfied as to the voluntariness of the verbal and the voluntariness of the Record of Interview; I had examined the overall circumstances and found there was nothing to warrant the exercise of my residual discretion to exclude them from evidence.  Hence they were admitted into evidence.  As a result, PP5, 6, 7 became P5, 6, 7 and their respective translations likewise converted.

302.At the time of delivery of my ruling, I made the remark and I repeat it now, that in conducting the voir dire exercise, I had treated the defendant as a person of clear record; that was a result of the unchallenged evidence of the defendant solely with the special issue that he had never been arrested prior to the incident subject of the charges.

303.Brief reasons for the ruling in the voir dire are as follows.  First of all, the Defence case.  Although DW2(S) cried from time to time during the course of giving evidence, especially when she was mentioning something about her son the defendant, I ruled that this had nothing to do with the veracity or otherwise of the evidence that she gave.  Naturally, a mother would be concerned about the welfare of her son and that was really the reason why she cried.

304.A lot turned on the credibility of witnesses.  I started with DW2(S). The documents produced by the Defence viz the Detained Persons Movement Record P8 and the Activity Record P9 do not support DW2(S)’s story about visiting Yuen Long Police Station during the day on 16 March.  She herself could not explain why she could not obtain the services of a lawyer until about 8 p.m. the same day.  She was a little evasive about the video clip that she said she received – the evidence about that aspect was self-conflicting as she was going along her evidence.  Her memory about what happened on 16 March had holes in it and she was quite unable to help as regards whether she had produced her ID card at the Yuen Long Police Station.  All of this did not paint her as a credible or reliable witness.  I did not believe her and rejected her evidence where it conflicted with the prosecution case.

305.Regarding the defendant himself, his evidence centred on whether he was stripped of his mobile phone at the scene of arrest and whether he had been deprived of the opportunity to call his employer and his family members for a lawyer.  I noted that although he was a young man of 22, the deft was reasonably well educated and had a decent job as a ground crew member at the airport.  I also treated him as a person of good character for the purpose of the voir dire hence his credibility as a witness was bolstered.  His background as someone working at the airport ought to have given him some ideas relating to security and rights issues.  I did not believe he would have nonetheless gone on to complete and sign the record of interview containing within it false declarations that everything was fine and in accord with normal procedure just because he was held at ransom for the reward of contacting the outside world once he finished.  For an adult of his background, I simply could not believe he would sign anything on the promises of making phone calls.  His memory also had holes in it in that he could not independently remember if he ever saw his mother on 16 March.  I rejected his evidence including the part relating to the seizure of his mobile phone.  In this respect, as he had been sitting in court all along, he was perfectly aware of the whole of the prosecution case one aspect of which was that his phone had not been snatched away from him, because the arresting officer PW4 had flatly denied such a suggestion under cross-examination.

306.Once I rejected the defence evidence, all that was left was the prosecution evidence.  I was satisfied as to the veracity of the evidence on the special issue and the credibility of the relevant witnesses because their evidence was reasonable and devoid of any major discrepancies which caused me to doubt their credibility.  Yes, there was PW6 Sgt 51071 (one of the three police motorcyclists who formed the roadblock) who said that he discussed with the others about the time aspect when they were writing their witness statements at the same place; and the others had said they had not discussed anything.  I consider this too minor a discrepancy to cast any doubt on the credibility of the officers.  One or more witnesses could have remembered wrongly on this tiny aspect.

307.On the issue of the trip to Pat Heung Police Station and back, I noted that although not much explanation had come out in evidence on the necessity for it, it happened after the Record of Interview had already concluded, and hence could hardly be said to relate to the voluntariness of the interview.  I noted also that there had been no request by the Defence for the OC Case to be tendered for cross-examination.

308.I was satisfied that the verbal caution at the scene was administered at the earliest appropriate opportunity.  I accepted there was good reason to handcuff the defendant at the scene initially.  I noted the verbal reply allegedly given by the defendant under caution was given while he was being handcuffed.  Here I noted that none of the objections to admissibility concerned the wearing of handcuffs or the promise of uncuffing once a reply had been given.  I accepted the reason given by the arresting officer PW4 for not getting the endorsement of the defendant on his notebook at the scene.  I was satisfied that there were no breaches of the Rules and Directions; but even if there were, they were not such as would cause me to exercise my residual discretion to exclude the material objected to.

Half-time procedure (general issue)

309.Following the ruling in the special issue, the prosecution closed its case on the general issue.  There was no half-time submission.  I ruled there was a case to answer on the three charges.

310.The defendant elected not to give or call evidence.

Issues in this case

311.There are several issues in this case.  They are:-

(a) The credibility and reliability of the prosecution witnesses;

(b) What weight is to be given to the verbal and the contents of the record of interview;

(c) In the case of the first and second charges, was the defendant the private motorcycle driver; and

(d) Did the driving manner of the private motorcycle driver in each of the three charges amount to dangerous driving?

Analysis of the evidence in the general issue

312.The defendant was not obliged to give or call evidence and nothing prejudicial flowed from his decision not to give and call evidence.  However, by so electing, no part of the evidence that he had led during his case in the special issue could be adopted for the purpose of the general issue.

313.Therefore apart from the three sets of admitted facts, all the evidence in this case came from the seven prosecution witnesses.

Credibility and reliability of prosecution witnesses

314.PW2 relates to Charge 1.  PW4 relates to Charge 2.  PWs 1, 4 (to an extent), 3, 7, and to a small extent PW6 relate to Charge 3.  PW5 relates to the special issue; his credibility and reliability had already been dealt with.

315.The evidence for Charge 1 came mainly from PW2.  PW 2 gave evidence in a straightforward manner.  His evidence on time, speeds, positions, and distances was clear and accorded with common sense.  I did not detect exaggeration in any part of his evidence.  There was nothing improbable in his evidence.  I ruled that he was a credible and reliable witness and I gave his evidence full weight.

316.The evidence for Charge 2 came mainly from PW4.  Again, his evidence on the encounter with mc2 was straightforward, and nothing in the cross-examination had been able to shake the foundation of his evidence.  He was the arresting officer and I already assessed his credibility once in the special issue.  I assessed it again in the context of the general issue but I had found nothing to cause me any concern in the exercise.  His evidence dealt with the chase in Kam Tin Road and the weight to be attached to the verbal and the contents of the record of interview.  There was really no evidence to contradict him in these two aspects.  I found that I was able to treat him as a credible and reliable witness and to give full weight to his evidence on Charge 2 as well as his evidence on the weight of the verbal and contents of record of interview.

317.The evidence for Charge 3 came mainly from PWs 1, 4 (to an extent), and 3 and 7.  PW1 was the civilian witness – a taxi driver.  The way he described the collision was a little different from that of the police witnesses.  He seemed to be saying there was only one collision involving the defendant’s motorcycle, and that was with AM7340 (the middle of the chain motorcycles driven by PW3 Sgt 54022) when both were in motion.  He said that the only reason why AM7131 (the tail police motorcycle) fell was that it was too close to AM7340.

318.The police witnesses principally PW3 Sgt 54022 said that it was after the trio motor-blockade had moved into Position 2 and become stationary that the defendant’s motorcycle had first collided with AM7131 (driven by Ag Sgt 52118) and then his own AM7340.  This difference had more to do with reliability than credibility because PW1 was not himself involved in the accident and therefore was in a superior position to see the accident from a more distant and objective perspective.  Hence, regarding what happened in the collision, I gave PW1’s evidence full weight.  It also appeared that the accident happened while the trio blockade was moving into Position 2 rather than had moved into Position 2 – it also made more sense.  This was because if they had already moved into Position 2, then there was less reason for the defendant to go into the first lane – it would have been far easier for him to escape by continuing on in the second lane and into the Interchange.

319.PW4 (the arresting officer) gave essentially the same evidence as PW3 but he (PW4) was not involved in the accident.  So had his credibility been affected ?  I considered that things happened very fast at the time – according to PW3, the trio’s movement from Position 1 to Position 2 happened fast. Hence, regarding what happened during this short space of time, it was entirely possible for PW4 to see it different from the way PW1 saw it.  Looking at PW4’s evidence overall, I ruled that he was nonetheless a credible and generally reliable witness despite the fact that on the issue of how the accident happened, I preferred the evidence of PW1 to that of PW4.

Weight of cautioned statements

320.Having ruled them voluntary and admissible, I admitted these cautioned statements into evidence.

321.I considered that the evidence of the arresting officer PW4’s evidence was reasonable and there was nothing inherently improbable about it.  I considered his overall credibility in relation to all aspects of his evidence not limited to the part relating to the cautioned statements.  I held that the verbal was in fact made and that the answers attributed to the defendant in the record of interview indeed came from him.  The cautioned statements contained inculpatory and exculpatory parts.  They were mixed statements.  Save where otherwise indicated (if any), I gave the inculpatory parts full weight and the exculpatory parts no weight.

Identity of the driver in the first and second charges

322.The identity of the driver in the first and second charges is in dispute. In terms of terminology, the question boils down to these: is mc1 the same as mc2 and the defendant’s motorcycle; is the driver of mc1 the same as the driver of mc2 and the defendant?  From the earliest moment, I was quite aware of the identity issue.  I paid particular attention to the descriptions of the motorcycle and the outfit of the driver as described by various witnesses.  I took into account the aspects of distance, time, and the availability of escape routes available to the suspect motorcycle at every stage.  I took into account the likelihood of switching drivers, and of a different driver/motorcycle having similar outer characteristics as those of the defendant and his motorcycle appearing in the subject area on the day and at the time that we are concerned with.  I took into account the evidence of PW4 (arresting officer) that he never lost sight of the motorcycle he had been chasing.  I took into account the possibility of mistaken witnesses under Turnbull and the various factors such as duration, lighting condition and other circumstances of the observations.  I re-examined the evidence in the light of all these considerations but could not fail to conclude that mc1 was in fact mc2 which was in fact the defendant’s motorcycle; and that the driver had all along been the same person, the defendant.

323.The foregoing conclusion was arrived at without consideration of the cautioned statements of the defendant.  If one took into account the contents of those cautioned statements, there could not be the slightest doubt that the same conclusion would be reached.

Finding of facts

324.After analyzing the evidence, I have the following finding of facts.

325.On 16 March 2014, at about 9:45 am, on Route Twist, Yuen Long, the defendant was driving a dark-coloured motorcycle bearing registration mark PE3892 and overtook a bus by crossing double white lines at a speed of about 90 km/h.  The speed limit was 50 km/h.  A police car was nearby and gave chase with siren and flashing lights on.  During the chase, the police driver never lost sight of the motorcycle.  Although at times he came close enough to the tail of the motorcycle, he was not able to see the licence plate usually to be found at the back of a motorcycle.  The motorcycle kept moving forward at speeds between 30 and 100 km/h and overtook various other vehicles whenever obstructed by crossing double white lines at speed.  Eventually, the police driver lost sight of the motorcycle when the latter just entered Kam Tin Bypass.

326.The defendant on the same motorcycle was seen again in Kam Tin Road Yuen Long bound shortly after it disappeared.  Initially, he was not travelling in excess of the speed limit of 50 km/h.  But when a police motorcyclist spotted it and turned around to chase it with siren and flashing lights on, the defendant speeded up to about 100 km/h and was travelling in the middle of two lanes going in the same direction with heavy traffic, occasionally finding himself in between two overlapping vehicles.  The police motorcyclist kept the defendant in sight and followed him to Au Tau Roundabout which the defendant entered at about 80 km/h.  Thereafter, the defendant came onto the approach road to Pok Oi Interchange.

327.On the approach road, the defendant was travelling in the second lane initially at 100 km/h, but later slowed down to a stop at about 10 metres away from the road block ahead created by three other police motorcycles.  Ignoring police warning to stop the engine, the defendant moved forward again to about 1 metre from the roadblock, intending to slip through a gap between the road block and a green taxi in the first lane.  However, as the road block was repositioning itself by moving towards the first lane, the defendant when moving into the first lane collided with one of police motorcycles of the road block causing it and his own motorcycle to fall.  In the confusion, one other police motorcycle fell.  As a result of the accident, two police motorcyclists suffered injuries and their respective motorcycles sustained damage.

328.The defendant was helped off his motorcycle by the police but found to be struggling and hence had to be handcuffed at the back and made to sit on the road side.  When he calmed down, he was arrested for furious driving and no insurance and was cautioned.  Under caution, he said voluntarily, “I fled at Tai Shan only because (I) did not want to be caught (and requested) by Sir for a vehicle examination.  I did not intend to hit the police vehicles.”

329.He was later taken to Yuen Long Police Station for a formal Record of Interview which contained a post-record of what he said at the scene and a series of questions and answers which he was asked and answered at the police station.  He voluntarily participated in the interview.

330.From the defendant’s cautioned statements, I found the following facts:-

(a) He fled at Tai Mo Shan because he did not want to be caught by the police for a vehicle examination. He did not intend to hit the police vehicles;

(b) That morning, he went for a ride on his motorcycle PE3892 from home to Route Twist at Tai Mo Shan. Later, he intended to return home;

(c) As he was in a rush to return home, he did overtake vehicles by cutting double white lines; he thought he had been speeding;

(d) He was travelling at high speed in between the first and second lanes of Kam Tin Road and passed by other vehicles at the same time; and

(e) At Pok Oi Interchange, he found so many police vehicles around. He was afraid of being caught and requested for a vehicle examination. He intended to drive slowly by the side but somehow he crashed into the police motorcycle(s).

The law on dangerous driving

331.First of all, by way of contrast, I shall define careless driving first.  According to s 38(2) of the Road Traffic Ordinance, Cap 374, a person drives carelessly if on a road he drives a vehicle without due care and attention or without reasonable consideration for other persons using the road.

332.Dangerous driving is more serious and is something more.  According to s 36(4), a person is to be regarded as driving dangerously if:-

(a) The way he drives falls far below what would be expected of a competent and careful driver; and

(b) It would be obvious to a competent and careful driver that driving in that way would be dangerous.

333.According to s 36(6), “dangerous” refers to danger either of injury to any person or of serious damage to property.

334.According to s 36(7), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including:-

(a) The nature, condition and use of the road concerned at the material time;

(b) The amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c) The circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

335.The test to be adopted for assessing “dangerous driving” is an objective test.

Application of law on facts (driving manner amounted to dangerous driving?)

336.For Charge 1, the defendant was not only speeding, he crossed double white lines to overtake a stationary bus.  When he was chased by the police, instead of stopping which he should have done, he continued to cross double white lines at 7 other places along Route Twist one of which was near a bend (Location 7 – P1(36)).  I took into account the traffic was not heavy at the time.  However, a motorcycle being a motorcycle, driving one in that manner and at that speed in order to evade arrest was extremely dangerous in terms of injury to the defendant himself and any other road users around him – and there were at least 7 other drivers using the road at that time.  And if an accident did occur, the potential for serious damage to property could readily be appreciated.

337.I held that the driving manner of the defendant displayed by the defendant in Charge 1 fell far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

338.For Charge 2, the defendant upon being chased by the police ran off at 100 km/h ie double the speed limit, travelling in between two lanes of heavy traffic sometimes finding himself sandwiched between two other travelling vehicles.  Again, a motorcycle being what it is, the slightest error in judgement of the defendant while driving under those circumstances could have resulted in injury to the defendant himself and/or those around him and in serious damage to other vehicles nearby – that was the danger involved and must have been one of the dangers sought to be targeted by the legislation.

339.I held that the driving manner of the defendant displayed by the defendant in Charge 2 fell far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

340.For Charge 3, the defendant got onto the approach road to Pok Oi Interchange at excessive speed.  It slowed down and eventually stopped at 1 metre before the police blockade.  Despite repeated warnings to stop the engine, he attempted to go through the narrow gap between the blockade and a NT taxi while the blockade was repositioning itself resulting in a collision between his motorcycle and a police motorcycle.  The ensuing confusion resulted in the fall of three motorcycles including his own.  Despite the actual injury suffered by the two traffic policemen, the defendant’s conduct under this charge while objectionable from a law-enforcement point of view might not, in my view, amount to dangerous driving, beyond a reasonable doubt. 

341.I held that the defendant, by his conduct, merely drove his motorcycle without due care and attention or without reasonable consideration for other persons using the road.

Conclusion

342.For the above reasons, I rule that the defendant is guilty of the first and second charges, as charged, but he is not guilty of Charge 3; instead he is only guilty of careless driving for that occasion.